Indemnification Agreement - Talk.com Inc. and Thomas M. Walsh
TALK.COM INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of
August 7, 2000, by and between Talk.com Inc., a Delaware corporation (the
"Company"), and Thomas M. Walsh ("Indemnitee").
WHEREAS, pursuant to that certain employment agreement between
the Company, Talk.com Holding Corp. and Indemnitee dated August 7, 2000 (the
"Employment Agreement") Indemnitee will commence service, on or prior to
September 4, 2000 as Vice President-Finance of the Company and will perform a
valuable service in such capacity for the Company; and
WHEREAS, the Company desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to serve the
Company and, in order to induce Indemnitee to enter into the Employment
Agreement, the Company agreed to enter into an agreement with Indemnitee
providing for the indemnification of Indemnitee as provided herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the undersigned hereby
agree as follows:
1. Indemnification.
(a) Indemnification of Indemnitee. The Company shall indemnify
and hold harmless Indemnitee to the fullest extent permitted by law if
Indemnitee was or is or becomes a party to, or witness or other participant in,
or is threatened to be made a party to, or witness or other participant in, any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (collectively, hereinafter a "Claim") by
reason of, or arising in whole or in part out of, any event or occurrence
related to the fact that Indemnitee is or was a director, officer, manager,
employee, agent, representative or fiduciary of the Company, a subsidiary of the
Company (a "Subsidiary") or an affiliate (as defined in Rule 405 under the
Securities Act of 1933, as amended) of the Company (an "Affiliate"), or is or
was serving at the request of the Company or any Subsidiary or Affiliate as a
director, officer, manager, employee, agent, representative or fiduciary of
another corporation, limited liability company, partnership, joint venture,
employee benefit plan, trust or other entity or enterprise (collectively, an
"Other Entity"), or by reason of any action or inaction on the part of
Indemnitee while serving in any of such capacities, whether or not the basis of
the Claim is an alleged action in an official capacity as a director, officer,
manager, employee, agent, representative or fiduciary of the Company, or any
Subsidiary, Affiliate or Other Entity (any of the foregoing capacities
referenced in this Section 1(a), an "Indemnified Capacity"), against any and all
costs, expenses and other amounts actually and reasonably incurred and/or, as
the case may be, paid (including, without limitation, attorneys' fees and all
other costs, expenses and obligations actually and reasonably incurred in
connection with
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investigating, defending, being a witness in, or otherwise participating in
(including on appeal), or preparing to defend, any Claim), and judgements,
fines, penalties and amounts paid in connection with the settlement of any Claim
and any federal, state, local or foreign taxes imposed on the Indemnitee as a
result of the actual or deemed receipt of any payments under this Agreement,
including all interest, assessments and other charges paid or payable by the
Indemnitee in connection with or in respect of such costs, expenses and other
amounts (collectively, hereinafter, the "Expenses"). Without limiting the rights
of Indemnitee under Section 2(a) below, the payment of Expenses actually paid by
Employee shall be made by the Company as soon as practicable, but in any event
no later than thirty (30) days after written demand by Indemnitee therefor is
presented to the Company. Any event giving use to the right of Indemnitee to be
indemnified hereinafter is referred to herein as an "Indemnifiable Event."
(b) Reviewing Party. Notwithstanding the foregoing, (i) the
obligations of the Company under Section 1(a) hereof shall be subject to the
condition that the Reviewing Party (as defined in Section 10(e) hereof) shall
not have determined (in a written opinion, in any case in which the Independent
Legal Counsel (as defined in Section 10(d) hereof) is involved) that Indemnitee
would not be permitted to be indemnified under applicable law, and (ii) the
obligation of the Company to make an advance payment of Expenses to Indemnitee
pursuant to Section 2(a) hereof (an "Expense Advance") shall be subject to the
condition that, if, when and to the extent that the Reviewing Party determines
that Indemnitee would not be permitted to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby
agrees to so reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee could be indemnified under applicable law, any determination
made by the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and Indemnitee shall not
be required to reimburse the Company for any Expense Advance until a final
judicial determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed). Indemnitee's obligation to
reimburse the Company for any Expense Advance shall be unsecured and no interest
shall be charged thereon. If there has not been a Change in Control (as defined
in Section 10(c) hereof), the Reviewing Party shall be selected by members of
the Board of Directors who are not or were not, as the case may be, a party or
parties, as the case may be, to the Claim in respect of which indemnification is
sought, and if there has been a Change in Control (other than a Change in
Control which has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in Control), the
Reviewing Party shall be the Independent Legal Counsel. If, within thirty (30)
days after the Company's receipt of written notice from Indemnitee demanding
such indemnification (the "30-Day Period") (i) the Reviewing Party determines
that Indemnitee substantively would not be permitted to be indemnified in whole
or in part under applicable law or makes no determination in that regard or,
(ii) Indemnitee shall not have received full indemnification from the Company,
Indemnitee shall have the right to commence litigation seeking a determination
by a court of competent jurisdiction as to the propriety of indemnification
under the circumstances involved or challenging any such determination (or lack
thereof) by the Reviewing Party or any aspect thereof, including the legal or
factual bases therefor or the failure of the Company to fully indemnify the
Indemnitee, and the Company hereby consents to service of process and to appear
in any such proceeding and hereby appoints the Secretary of the Company (or, if
such office is not filled at a time in question, any Assistant
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Secretary of the Company or, if such office is not filled at a time in question,
any Vice President of the Company - each, a "Service Receiver") as its agent for
such service of process. Any determination by the Reviewing Party not otherwise
so challenged shall be conclusive and binding on the Company and Indemnitee.
(c) Change in Control. The Company agrees that if there is a
Change in Control (other than a Change in Control which has been approved by a
majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control), then, with respect to all matters thereafter
arising concerning the rights of Indemnitee to payments of Expenses and Expense
Advances under this Agreement or any other agreement or under the Company's
Certificate of Incorporation or Bylaws as now or hereafter in effect, the
Company shall seek legal advice only from the Independent Legal Counsel. Such
counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent Indemnitee would be permitted to be
indemnified under applicable law. The Company agrees to pay the reasonable fees
of the Independent Legal Counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(d) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise, including, without limitation, the dismissal of an
action without prejudice, in connection with any Claim, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by Indemnitee
in connection therewith.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all
Expenses incurred by Indemnitee so that the Company, and not Indemnitee, shall
be obligated to pay such incurred Expenses. The advances of Expenses to be made
hereunder shall be paid by the Company to Indemnitee as soon as practicable, but
in any event no later than five (5) days after written demand by Indemnitee
therefor to the Company.
(b) Notice and Cooperation by Indemnitee. Indemnitee shall, as
a condition precedent to Indemnitee's right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or could be sought
under this Agreement; but the Indemnitee's failure to so notify the Company
shall not relieve the Company from any liability that it may have to Indemnitee
under this Agreement, except to the extent that the Company is able to establish
that its ability to avoid liability under such Claim was prejudiced in a
material respect by such failure. Notice to the Company shall be directed to a
Service Receiver at the address of the Company shown on the signature page of
this Agreement (or such other address as the Company shall designate in writing
to Indemnitee). In addition, Indemnitee shall, at the expense of the Company,
provide the Company with such information and cooperation with respect to a
Claim, or any matters related to such Claim, as it may reasonably require in
connection with the indemnification provided for herein and as shall be within
Indemnitee's power. Any costs or expenses (including attorneys' fees and
disbursements) actually and reasonably incurred by
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Indemnitee in so cooperating shall be borne by the Company (irrespective of the
determination as to Indemnitee's entitlement to indemnification), which shall
pay any such amount within fifteen (15) days after receiving a request therefor
from Indemnitee, and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) No Presumptions; Burden of Proof. For purposes of this
Agreement, the termination of any Claim by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law. In addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
applicable law, shall be a defense to a claim for indemnification by Indemnitee
hereunder or create a presumption that Indemnitee has not met any particular
standard of conduct or did not have any particular belief. In connection with
any determination by the Reviewing Party or otherwise as to whether Indemnitee
is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 2(b) hereof, the Company has
one or more policies of liability insurance in effect which may cover such
Claim, the Company shall give prompt notice of the commencement of such Claim to
the applicable insurer(s) in accordance with the procedures set forth in the
applicable policies. The Company shall thereafter take all action necessary or
desirable to cause such insurers to pay, on behalf of Indemnitee, all amounts
payable as a result of such Claim in accordance with the terms of such policies.
(e) Selection of Counsel. In the event that the Company shall
be obligated hereunder to pay the Expenses with respect to any Claim, the
Company, except as otherwise provided below, shall be entitled to assume the
defense of such Claim at its own expense with counsel approved by Indemnitee,
upon the delivery to Indemnitee of written notice of its election so to do.
Indemnitee's approval of such counsel shall not be unreasonably withheld. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
the Indemnitee with respect to such Claim, other than as provided below.
Indemnitee shall have the right to employ Indemnitee's own counsel in connection
with a Claim, but the fees and expenses of such counsel incurred after written
notice from the Company of its assumption of the defense thereof shall be at the
expense of Indemnitee, unless (i) the employment of counsel by Indemnitee has
been previously authorized by the Company, or, following a Change in Control
(other than a Change in Control approved by a majority of the members of the
Board of Directors who were directors immediately prior to such Change in
Control), the employment of counsel by Indemnitee has been approved by the
Independent Legal Counsel, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of any such defense, or (iii) the Company shall not, in fact, have
employed or retained or
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continued to employ or retain counsel to assume the defense of such Claim, in
each of which cases the fees and expenses of Indemnitee's counsel shall be at
the expense of the Company. The Company shall not be entitled to assume or
control the defense of any Claim brought by or on behalf of the Company or as to
which the Indemnitee has reached the conclusion that there may be a conflict of
interest between the Company and Indemnitee. The Company shall not settle any
Claim in any manner which would impose any penalty or limitation on Indemnitee
without the Indemnitee's written consent (which approval shall not be
unreasonably withheld).
(f) Settlement of Claims. The Company shall not be required to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any Claim effected without the Company's written consent; provided, however,
that consent by the Company to the settlement of any claim shall not be
unreasonably withheld. Notwithstanding the foregoing, however, if a Change in
Control has occurred (other than a Change in Control approved by a majority of
the members of the Board of Directors who were directors immediately prior to
such Change in Control), then the Company shall be required to indemnify
Indemnitee for amounts paid in settlement of any Claim if the Independent Legal
Counsel has approved such settlement or has not made a determination with
respect to such settlement within (30) days after the effective date of such
Change in Control.
3. Additional Indemnification Rights; Non-Exclusivity.
(a) Scope. The Company hereby agrees to indemnify Indemnitee
to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the Company's Certificate of
Incorporation or Bylaws or by statute. In the event of any change after the date
of this Agreement in any applicable law, statute or rule which expands the right
of the Company to indemnify Indemnitee, it is the intent of the parties hereto
that Indemnitee shall enjoy under this Agreement the greater benefits afforded
by such change. In the event of any change in any applicable law, statute or
rule which narrows the right of the Company to indemnify the Indemnitee, such
change, to the extent not otherwise required by such law, statute or rule to be
applied to this Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder.
(b) Non-Exclusivity. The indemnification provided by this Agreement shall be in
addition to any rights to which Indemnitee may be entitled under the Company's
Certificate of Incorporation or Bylaws, any agreement, vote of stockholders or
directors, the General Corporation Law of the State of Delaware, or otherwise.
The indemnification provided under this Agreement shall continue as to
Indemnitee for any Indemnifiable Event while serving in an Indemnified Capacity
even though Indemnitee may have ceased to serve in such Indemnified Capacity.
4. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any Claim to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy or otherwise) of the amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion of
any of the Expenses in
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connection with the investigation, appeal or settlement of any Claim, but not
for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for such portion of the Expenses.
6. Mutual Acknowledgment. Both the Company and Indemnitee
acknowledge that, in certain instances, applicable law or public policy may
prohibit the Company from indemnifying Indemnitee under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee.
7. Liability Insurance. To the extent the Company or any
Subsidiary or Affiliate maintains liability insurance applicable to directors,
officers, managers, employees, agents, representatives or fiduciaries of the
Company or such Subsidiary or Affiliate (collectively, the "Covered Persons"),
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Covered Persons who is then serving in the same capacity or
capacities, as the case may be, as Indemnitee.
8. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for
any Expenses resulting from acts, omissions or transactions from which
Indemnitee may not be indemnified under applicable law, or for any Expenses
resulting from Indemnitee's conduct which is finally adjudged to have been
willful misconduct or knowingly fraudulent conduct;
(b) Claims Initiated by Indemnitee. To indemnify or advance
Expenses to Indemnitee with respect to Claims initiated or brought voluntarily
by Indemnitee and not by way of defense, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, Expense Advance
or insurance recovery, as the case may be, except (i) with respect to
proceedings brought to establish or enforce (a) a right to, or for, Expense
Advances and/or, as the case may be, (b) any other right of Indemnitee under
this Agreement or any other agreement or insurance policy or under the Company's
Certificate of Incorporation or Bylaws now or hereafter in effect, (ii) in
specific cases, if the Board of Directors has approved the initiation or
bringing of such suit or (iii) as otherwise required under applicable law or
statute;
(c) Lack of Good Faith. To indemnify Indemnitee for any
Expenses incurred by Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
(d) Claims Under Section 16(b). To indemnify Indemnitee for
Expenses and the payment of profits arising from the purchase and sale or, sale
and purchase, by Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any similar
successor statute.
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9. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company with respect
to the matters addressed in this Agreement against Indemnitee, or Indemnitee's
estate, spouse, heirs, executors or personal or legal representatives after the
expiration of two(2) years from the date of accrual of such cause of action, and
any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall
govern.
10. Construction of Certain Phrases.
(a) Company. For purposes of this Agreement, references to the
"Company" shall include, in addition to the resulting entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, managers, employees, agents,
representation or fiduciaries, so that if Indemnitee is or was a director,
officer, employee, agent or fiduciary of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, manager, employee, agent or fiduciary of an Other Entity, Indemnitee
shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving entity as Indemnitee would have stood with
respect to such constituent entity if its separate existence had continued. The
consummation of any transaction described in this Section 10(a) shall be subject
to the requirements of Section 12, below.
(b) Miscellaneous Terms. For purposes of this Agreement,
references to "fines" shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to "serving at the request
of the Company or any Subsidiary or Affiliate" or words of similar import shall
include any service as a director, officer, manager, employee, agent,
representative or fiduciary of the Company which imposes duties on, or involves
services by, such director, officer, manager, employee, representative, agent or
fiduciary with respect to an employee benefit plan, or its participants or its
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
Agreement or under any applicable law or statute.
(c) Change in Control. For purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of stock of
the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of Voting Securities (as
defined below) of the Company representing more than twenty percent (20%) of the
total voting power represented by the Company's then outstanding Voting
Securities, (ii) during any period of two (2) consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of the Company
and any new director (other than a director designated by a person who has
entered
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into an agreement with the Company to effect a transaction described in clauses
(i), (iii) and (iv) of this Section 10(c)) whose election by the Board of
Directors or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation other than a
merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power of the resulting or
surviving entity outstanding immediately after such merger or consolidation, or
(iv) the stockholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all of the
Company's assets. For purposes of this Agreement, "Voting Securities" shall mean
any securities the holders of which vote generally in the election of directors.
(d) Independent Legal Counsel. For purposes of this Agreement,
"Independent Legal Counsel" shall mean an attorney or firm of attorneys, who
shall not have otherwise performed services for the Company or Indemnitee within
the then prior three years (other than with respect to matters concerning the
rights of Indemnitee under this Agreement, or of other indemnitees under similar
indemnity agreements) selected by the Company and approved by Indemnitee in
writing, which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, the term "Independent Legal Counsel" shall not include any firm or
person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee's right to indemnification
under this Agreement.
(e) Reviewing Party. For purposes of this Agreement, a
"Reviewing Party" shall mean (i) any person or group of persons consisting of a
member or members of the Company's Board of Directors and/or, as the case may
be, or any other person appointed by the Board of Directors who is not a party
to the particular Claim for which Indemnitee is seeking indemnification, or (ii)
Independent Legal Counsel.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which,
together, shall constitute one and the same document.
12. Binding Effect; Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns, heirs and personal
and legal representatives. The Company may not assign its obligations under this
Agreement to any individual or entity except by operation of law to an entity
acquiring all or substantially all of the business and/or, as the case may be,
assets of the Company (a "Successor") and, in any such case, the Company shall
continue to be obligated hereunder. The Company shall require and cause any
Successor by written agreement in form and substance satisfactory to Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall
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continue in effect regardless of whether Indemnitee continues to serve in an
Indemnified Capacity.
13. Attorneys' Fees. In the event that any action is instituted by
Indemnitee in a court of competent jurisdiction under this Agreement or under
any liability insurance policies maintained by the Company to enforce, or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be
paid all Expenses actually and reasonably incurred by Indemnitee with respect to
such action, regardless of whether Indemnitee is ultimately successful in such
action, and shall be entitled to an advance of such Expenses in the manner
provided in Section 2 (a), above, with respect to such action, unless, as a part
of such action, the court in which such action is brought determines that each
of the material assertions made by Indemnitee as a basis for such action was not
made in good faith or was frivolous. In the event of an action instituted by or
in the name of the Company under this Agreement to enforce or interpret any of
the terms of this Agreement, Indemnitee shall be entitled to be paid all
Expenses actually and reasonably incurred by Indemnitee in defense of such
action (including costs and expenses incurred with respect to Indemnitee's
counterclaims and cross-claims made in such action), and shall be entitled to an
advance of such Expenses in the manner provided in Section 2 (a), above, with
respect to such action, unless as a part of such action such court determines
that each of Indemnitee's material defenses to such action were made in bad
faith or were frivolous.
14. Notice. Any notices or demands given in connection herewith
shall be in writing and deemed given when (a) personally delivered, (b) sent by
facsimile transmission to a number provided in writing by the addressee and a
confirmation of the transmission is received by the sender or (c) two (2) days
after being deposited for delivery with a recognized overnight courier, such as
Fed Ex, and addressed or sent, as the case may be, to the address or facsimile
number set forth below or to such other address or facsimile number as such
party may in writing designate:
If to Indemnitee: Thomas M. Walsh
If to Company: Talk.com Inc.
12020 Sunrise Valley Drive
Suite 250
Reston, VA 20190
Attn: Secretary
15. Consent to Jurisdiction. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the Commonwealth
of Pennsylvania for all purposes in connection with any action or proceeding
which arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be commenced, prosecuted and continued
only in the courts of the Commonwealth of Pennsylvania in and for the County of
Philadelphia, which shall be the exclusive and only proper forum for
adjudicating such a claim.
16. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted by
law. Furthermore, to the fullest extent possible, the provisions of this
Agreement
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(including, without limitation, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself held to be invalid, void or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
17. Choice of Law. This Agreement shall be governed by and its
provisions construed and enforced in accordance with the laws of the State of
Delaware, without regard to the conflict of laws principles thereof.
18. Subrogation. In the event of payment to, or on behalf of
Indemnitee under this Agreement, the Company shall be subrogated to the extent
of such payment to all of the rights of recovery of Indemnitee, who shall, at
Company's expense, execute all documents required and shall do all acts that may
be necessary to secure such rights and to enable the Company effectively to
bring suit to enforce such rights.
19. Amendment and Termination. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless it is in
writing signed by both of the parties hereto. No waiver of any of the provisions
of this Agreement shall be deemed to, or shall constitute a waiver of, any other
provisions hereof (whether or not similar thereto), nor shall such waiver
constitute a continuing waiver. Except as specifically set forth herein, no
failure to exercise, or any delay in exercising, any right or remedy hereunder
shall constitute a waiver thereof.
20. Integration and Entire Agreement. This Agreement sets forth
the entire understanding between the parties hereto and supersedes all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
21. No Construction as Employment Agreement. Nothing contained in
this Agreement shall be construed as giving Indemnitee any right to be retained
in the employ of the Company or any Subsidiaries.
22. Certain Words. As used in this Agreement, the words "herein,"
"hereunder," "hereof" and similar words shall be deemed to refer to this
Agreement in its entirety, and not to any particular provision of this Agreement
unless the context clearly requires otherwise.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
TALK.COM INC.
By:
--------------------------------
Title:
-----------------------------
AGREED TO AND ACCEPTED
INDEMNITEE:
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Thomas M. Walsh
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